THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of James Watson Smiley, IV, Respondent.
Appellate Case No. 2020-001315
Opinion No. 28024
Submitted March 26, 2021 – Filed April 21, 2021
DEFINITE SUSPENSION
Disciplinary Counsel John S. Nichols and Assistant
Disciplinary Counsel Julie K. Martino, both of Columbia,
for the Office of Disciplinary Counsel.
James Watson Smiley, IV, of Charleston, Pro Se.
PER CURIAM: In this attorney disciplinary matter, formal charges were filed
against Respondent on September 5, 2019, alleging he committed misconduct in
failing to timely perfect an appeal, failing to correct various deficiencies the South
Carolina Court of Appeals ordered him to correct, and failing to respond to
inquiries by the Office of Disciplinary Counsel (ODC). Based on this misconduct
and Respondent's prior history of failing to respond to ODC in a timely manner, a
panel of the Commission on Lawyer Conduct (Panel) recommended a four-month
suspension. Neither Respondent nor ODC have filed exceptions to the Panel
report. We find Respondent committed misconduct and impose a four-month
definite suspension.
I.
Respondent was admitted to the Bar in 1993 and has always been a criminal
defense trial lawyer, primarily in a one-person law firm. The complaint at issue in
29
this matter stems from his representation of a client on a motion for reconsideration
following an Alford plea.1 Respondent did not represent the client at the time of
the plea, but he was later hired by the client's mother to handle the motion for
reconsideration. Following the denial of the motion for reconsideration, the client
wished to appeal. Although Respondent attempted to file and serve a notice of
appeal and motion to be relieved as counsel, it was untimely and lacked the Rule
203(d)(1)(B)(iv), SCACR, explanation demonstrating there is a reviewable issue,
which is required in appeals from an Alford plea. Over the next four months, the
Court of Appeals wrote Respondent several letters explaining the deficiencies and
how to correct them and warned Respondent that his request to be relieved as
counsel could not be considered until the required explanation was received.
However, Respondent incorrectly believed the Appellate Division of the South
Carolina Commission on Indigent Defense had taken over the matter and that he
was merely being provided courtesy copies of the letters; therefore, he did not open
or take any action on them. Thereafter, the Court of Appeals issued an order
directing Respondent to file the required explanation within ten days or the appeal
would be dismissed. Respondent failed to take the action ordered by the Court of
Appeals, and due to Respondent's neglect, the client's appeal was dismissed.
The client subsequently filed a complaint with ODC, which sent Respondent a
Notice of Investigation. Respondent's response was thirteen days late.2 Likewise,
his response to ODC's request for follow-up information was thirty-six days late.
At the Panel hearing, Respondent admitted he failed to properly perfect the client's
appeal or take the actions the Court of Appeals directed him to take. He also
admitted he failed to timely respond to ODC's inquiries in this matter, and in the
matters involved in his disciplinary history.3 Respondent expressed remorse and
1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
In the meantime, ODC sent Respondent a letter pursuant to In re Treacy, 277 S.C. 514, 290
S.E.2d 240 (1982), via certified mail; however, Respondent failed to sign for the certified copy of
the letter.
3
Respondent's disciplinary history includes a 2014 Public Reprimand, citing the following Rules
of Professional Conduct in Rule 407, SCACR: Rule 1.1 (competence); Rule 1.2 (abide by client
decisions concerning objectives of representation); Rule 1.4 (communication); Rule 1.15(f) (not
disbursing funds from trust account until funds are collected); Rule 8.1(b) (failure to respond to
30
maintained that his failure to respond was not willful; rather, he contended it was
because he is a busy trial lawyer and he struggles to carve out time to open his
mail, file correspondence, or otherwise mind the administrative aspects of his
practice. He also explained that he had never before handled an appeal from a plea
and admitted that things went awry when he failed to put together his typical
"appeal packet."
II.
We find Respondent's conduct violated the following Rules of Professional
Conduct in Rule 407, SCACR: Rule 1.1 (competence); Rule 1.3 (diligence); Rule
1.4 (communication); Rule 3.4(c) (knowing failure to comply with rules of a
tribunal); Rule 8.1(b) (failure to respond to ODC inquiry); and Rule 8.4(e)
(conduct prejudicial to the administration of justice). We further conclude
Respondent's conduct violated the Lawyer's Oath in Rule 402(h)(3), SCACR.
This misconduct constitutes grounds for discipline under the following Rules for
Lawyer Disciplinary Enforcement in Rule 413, SCACR: Rule 7(a)(1) (violation of
the Rules of Professional Conduct); Rule 7(a)(3) (failure to respond to ODC); Rule
7(a)(5) (conduct tending to pollute the administration of justice); Rule 7(a)(6)
(violating the Lawyer's Oath); and Rule 7(a)(7) (willful violation of valid order
from Court of Appeals).
Accordingly, we impose a definite suspension of four months with the following
conditions: (1) prior to being reinstated, Respondent must appear before the
Committee on Character and Fitness and complete the Legal Ethics and Practice
Program Law Office Management School; and (2) upon reinstatement, Respondent
must enter into and comply with a contract with a Law Office Monitor selected by
Counsel to the Commission on Lawyer Conduct (Commission), timely pay the
Monitor's fee, and file monthly reports from the Monitor with the Commission for
a period of one year.
Within fifteen days of the date of this opinion, Respondent shall file an affidavit
with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule
413, SCACR. Within thirty days of the date of this opinion, Respondent shall: (1)
ODC inquiry); and Rule 8.4(e) (conduct prejudicial to the administration of justice). In re
Smiley, 409 S.C. 256, 762 S.E.2d 28 (2014).
31
make restitution to his client in the amount of $1,000; and (2) pay or enter into a
reasonable payment plan with the Commission to pay the costs of these
disciplinary proceedings.
DEFINITE SUSPENSION.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
32